Al Smith Commentary: “The Defensive Medicine Myth”

Our political discussions regarding health care often take a familiar turn. Too often those discussions build upon the principles of the modern father of propaganda, Joseph Goebbels, of Nazi infamy. Especially prevalent is his principle that, “If you tell a lie big enough and keep repeating it, people will eventually come to believe it.”

One of the new “big lies” being spewed over the past couple of years is that so-called “defensive medicine” is a significant factor in health care costs. Supposedly doctors order unnecessary tests and medical procedures as a means to avoid lawsuits. And of course, the only cure for defensive medicine is to limit or deny the rights of persons who have been harmed by medical negligence – so-called ‘tort reform.’
Defensive medicine is back in Montana – it’s on the agenda for the Select Committee on Efficiency in Government. Defensive medicine and efficiency in government – what’s the connection? Well, the connection seems to be government money spent for poor people. Hospitals are proposing a higher burden of proof for poor people on Medicaid who are harmed by medical malpractice. The rationale being that if some of the poor people on Medicaid had to meet a higher standard than other people to prove malpractice, then there would be less so-called defensive medicine.

Besides the legal problem of subjecting one group of malpractice victims to a higher and more difficult legal standard than other malpractice victims, there is a basic factual question that must be answered, in Montana and nationally – is defensive medicine even a significant cause of higher health care costs? Are there real facts to back up such claims, or has propaganda created another falsehood, that with repetition has come to be accepted as truth?

Nationally, there just aren’t facts to back up the claim that defensive medicine is a significant factor in health care costs. The Congressional Budget Office, when it actually studied the issue, called the evidence of defensive medicine “not conclusive,” and summarized, “On the basis of existing studies and its own research, CBO believes that savings from reducing defensive medicine would be very small.” Researchers at Dartmouth College echoed these conclusions, saying, “The fact that we see very little evidence of widespread physician exodus or dramatic increases in the use of defensive medicine in response to increases in state malpractice premiums places the more dire predictions of malpractice alarmists in doubt.” The Government Accountability Office has issued similar statements questioning the occurrence of defensive medicine, saying, the overall prevalence and costs of defensive medicine have not been reliably measured, and “study results cannot be generalized to estimate the extent and cost of defensive medicine practices across the health care system.”

In one study doctors were told it was designed to study decisionmaking and made no reference to medical malpractice, eliminating any bias on the part of the respondents. Physicians were asked to indicate all their reasons, including the most important, for their clinical decision. Just 8 percent of responses indicated that they would order a procedure for defensive reasons. In only 0.5 percent of the responses did physicians say that litigation fear was the single most important reason for their decision. Those numbers are likely to be even less than reported because the study was admittedly “designed to increase the likelihood of defensive response by physicians.”

Some of the surveys were open-ended with doctors given only a blank space to list the reasons for their clinical decision. In those surveys, even fewer physicians listed litigation fears as a reason behind their decisionmaking than when that explanation was simply a check box option.

Why do physicians order tests and procedures? One government agency found that when doctors ordered tests they almost always did so because of medical indications. Other reasons include, the desire to maintain a good doctor-patient relationship, caving into patient demands due to the influence of advertising by the medical industry, the simple availability of sophisticated technology, the desire for diagnostic certainty, the fear of missing a diagnosis that could harm a patient, and financial gain – a side effect of our traditional fee-for-service payment system.

We have absolutely no valid studies on medical decision making in Montana. But we do know that Medicaid requires that medical tests and procedures must be medically necessary. Truly defensive medicine – tests and procedures ordered not because they are medically necessary, but only to lessen liability exposure, is fraud.

Looking at the numbers, all malpractice costs – malpractice insurance premiums, damages paid, legal fees, etc – amount to less than 2% of our total health care costs. The health care industry could receive total immunity from all lawsuits and it would lower health care costs only 2%. Making it harder for some poor people in Montana to seek justice would save even less, at the high cost of a further erosion of our constitutional rights.


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